IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

WACO SCAFFOLDING-COLUMBUS,

Plaintiff,

 Civil Action 2:11-cv-116

v. Magistrate Judge E.A. Preston Deavers

 

KASTRA PAINTING, INC. et al., 

Defendants. 

ORDER

This matter is before the Court for consideration of Erie Insurance Company’s (“Erie”)

Motion for Summary Judgment (ECF No. 24), its Motion for Default Judgment (ECF No. 30),

and the Memorandum in Opposition of Kastra Painting, Inc. (“Kastra”) and Costas Goutselas

(collectively “Kastra Defendants”) (ECF No. 33). For the reasons that follow, Erie’s Motion for

Summary Judgment is GRANTED, and its Motion for Default Judgment is DENIED AS

MOOT. 

I.

The Kastra Defendants operate a painting company. In September 2009, the Kastra

Defendants contracted with the United States Department of Transportation and Federal

Aviation Administration (“FAA”) to do work on a federal project known as the Port Columbus

Control Tower Project (“Tower Project”). As required by the FAA, Kastra requested that Erie

issue a payment bond in connection with its work on the Tower Project. The Kastra Defendants

had previously executed an indemnity agreement (“Indemnity Agreement”) in order to induce

Erie to issue the payment bonds it requested. The Indemnity Agreement obligated the Kastra

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Defendants to reimburse Erie for any payments Erie made in connection with the payment bonds

it issued to the Kastra Defendants. It also entitled Erie to reimbursement from the Kastra

Defendants for any court costs and attorneys’ fees. Erie issued the payment bond for the Tower

Project (“Bond”) at a cost of $3715. The Kastra Defendants, however, did not pay Erie for the

Bond. 

In connection with its work on the Tower Project, the Kastra Defendants contracted with

Waco Scaffolding-Columbus (“Waco”) to furnish certain equipment and/or materials. Waco

completed its work under the contract, but the Kastra Defendants failed to pay for it. Waco also

submitted a claim for payment to Erie pursuant to the Bond. Erie likewise failed to pay Waco.

Waco subsequently brought this action against the Kastra Defendants and Erie, asserting claims

under the provisions of the Miller Act, 50 U.S.C. § 3133(b)(3)(B), as well as state-law claims for

breach of contract and quantum meruit. Erie filed cross-claims against the Kastra Defendants for

breach of contract and indemnity/contribution. (ECF No. 13.) The Kastra Defendants did not

file an answer to Erie’s cross-claims. 

In order to resolve Waco’s claims, Erie paid Waco $44,446.89. The Kastra Defendants

were involved in the settlement negotiations and agreed to Erie’s payment of Waco’s claim. In

connection with this payment, Waco, Erie, and the Kastra Defendants executed a release. 

Pursuant to Federal Rule of Civil Procedure 41, Waco stipulated to dismissal of its claims

against Defendants, leaving only Erie’s state-law cross-claims against the Kastra Defendants

pending. With the consent of Erie and the Kastra Defendants, the Court agreed to exercise its

discretion to retain jurisdiction over the remaining state-law cross-claims. (ECF No. 32.) 

Erie moves this Court for default judgment or summary judgment awarding it the $3715

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cost of the Bond, the $44,446.89 it paid to Waco, and $5,339.78 it has spent in attorneys’ fees

defending against Waco’s claims and in pursuing it own judgment. The Kastra Defendants

oppose Erie’s Motions. They contend that default judgment is inappropriate because they have

“engaged in extensive work throughout this action” and they “were also actively engaged in

settlement negotiations to resolve the underlying claims . . . .” (Kastra Defs.’ Mem. in Opp. 3,

ECF No. 33.) The Kastra Defendants further submit that Erie is not entitled to summary

judgment because significant issues of material fact remain. Specifically, the Kastra Defendants

appear to assert that Erie’s actions undermine its allegations regarding the status of its

contractual relationship between the parties.

II.

Under Federal Rule of Civil Procedure 56, “[t]he court shall grant summary judgment if

the movant shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “The moving party has the initial

burden of proving that no genuine issue of material fact exists, and the court must draw all

reasonable inferences in the light most favorable to the nonmoving party.” Stansberry v. Air

Wisconsin Airlines Corp., 651 F.3d 482, 486 (6th Cir. 2011) (internal quotations omitted); cf.

Fed. R. Civ. P. 56(e)(2) (providing that if a party “fails to properly address another party’s

assertion of fact” then the Court may “consider the fact undisputed for purposes of the motion”).

“Once the moving party meets its initial burden, the nonmovant must ‘designate specific

facts showing that there is a genuine issue for trial.’” Kimble v. Wasylyshyn, No. 10–3110, 2011

WL 4469612, at *3 (6th Cir. Sept. 28, 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317,

324 (1986)); see also Fed. R. Civ. P. 56(c) (requiring a party maintaining that a fact is genuinely

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disputed to “cit[e] to particular parts of materials in the record”). “The nonmovant must,

however, do more than simply show that there is some metaphysical doubt as to the material

facts, . . . there must be evidence upon which a reasonable jury could return a verdict in favor of

the non-moving party to create a genuine dispute.” Lee v. Metro. Gov’t of Nashville & Davidson

Cnty., 432 F. App’x 435, 441 (6th Cir. 2011) (internal quotation marks and citations omitted). 

“When a motion for summary judgment is properly made and supported and the nonmoving

party fails to respond with a showing sufficient to establish an essential element of its case,

summary judgment is appropriate.” Stanberry, 651 F.3d at 486 (citing Celotex, 477 U.S. at

322–23).

III.

The Court concludes that Erie has produced undisputed evidence establishing the

requisite elements of its breach of contract claim. “To prevail on a breach of contract claim

under Ohio law, a plaintiff must establish the following four elements: (1) the existence of a

contract; (2) performance by the plaintiff; (3) a breach by the defendant; and (4) damage or loss

to the plaintiff.” Alpha Telecomms., Inc. v. Int’l. Bus. Mach. Corp., 194 F. App’x 385, 388–89

(6th Cir. 2006) (citing Doner v. Snapp, 98 Ohio App.3d 597, 600–01 (1994)). Here, Erie

produced affidavit testimony demonstrating that (1) the Kastra Defendants contracted with Erie

for the issuance of a payment bond in connection with the Tower Project; (2) Erie issued the

requested payment bond; (3) the Kastra Defendants did not pay for the payment bond; (4) the

cost of the payment bond was $3715. (See Painter Aff. ¶¶ 3–4, ECF No. 24-1.) Erie has,

therefore, met its initial burden with regard to its breach of contract claim. 

Erie has likewise met its initial burden with regard to its indemnity claim. Erie has

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offered evidence demonstrating that the Kastra Defendants executed the Indemnity Agreement in

order to induce Erie to issue the Bond. (See id. at ¶ 5.) The terms of the Indemnity Agreement

are clear and unambiguous. In signing the agreement, the Kastra Defendants agreed to

indemnify Erie as follows: 

 [F]rom and against any and all liability for losses and/or expenses of whatsoever

kind or nature (including, but not limited to, interest, court costs, and counsel fees)

and from and against any and all such losses and/or expenses which [Erie] may

sustain and incur: (1) By reason of having executed or procured the execution of the

Bonds . . . . 

(Indemnity Agreement 1, ECF No. 24-3.) Erie has further established that: (1) Waco asserted a

claim against Erie pursuant to the Bond; (2) the Kastra Defendants were involved in settlement

negotiations and agreed to Erie’s payment of Waco’s claim in the amount of $44,446.89; and (3)

Erie incurred legal fees of $5,399.78 in defending against Waco’s claim and in pursuing its

claims against the Kastra Defendants. (McGarry Aff. ¶¶ 2–3, ECF No. 24-4.) Thus, Erie has

established that the Kastra Defendants are liable to it under the Indemnity Agreement for the

$44,446.89 and $5,399.78 it paid and sustained in losses in connection with the Bond. 

 The Kastra Defendants point to no evidence in the record that creates a genuine issue of

material fact or that precludes the entry of summary judgment in Erie’s favor. Rule 56(c)

requires “[a] party asserting that a fact cannot be . . . genuinely disputed” to “support the

assertion by: citing to particular parts of materials in the record . . . .” Fed. R. Civ. P.

56(c)(1)(A). In their opposition brief, the Kastra Defendants fall short in this regard. The Kastra

Defendants assert generally that issues of fact remain, “including Kastra’s liability to [Waco],

the reach of the alleged indemnity agreement, and Erie’s payments to [Waco] on behalf of

Kastra.” (Kastra Defs.’ Mem. in Opp. 4, ECF No. 2.) They follow up this unsupported

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statement with a number of other similarly unsubstantiated declarations in an attempt to cast

doubt on whether Erie has established that they are entitled to judgment as a matter of law. For

example, the Kastra Defendants appear to challenge the applicability of the Indemnity

Agreement to the Bond, pointing out that the Indemnity Agreement was executed more than

three years prior to the execution of the Bond. The Indemnity Agreement, however, explicitly

provides that it remains in force until either Erie or the Kastra Defendants give “twenty days’

written notice sent by registered mail.” (Indemnity Agreement 3, ECF No. 24-3.) The Kastra

Defendants do not allege or produce any evidence suggesting that the Indemnity Agreement had

been terminated at the time Erie issued the Bond for the Tower Project. Similarly, the Kastra

Defendants attempt to cast doubt on whether or not they had paid Erie for the Bond, stating that

“[i]f Kastra Defendants had failed to pay Erie for payment bonds, or otherwise [failed to] comply

with business agreements, then there should not have been a continuing relationship between the

two.” (Kastra Defs.’ Mem. in Opp. 4, ECF No. 33.) Again, beyond this unsupported statement,

the Kastra Defendants offer no evidence to contradict Erie’s affidavit testimony establishing that

the Kastra Defendants did not pay Erie the $3715 owed for the Bond. The Court, therefore,

treats Erie’s properly supported facts as undisputed. See Fed. R. Civ. P. 56(e) (“If a party fails to

. . . properly address another party’s assertion of fact as required by Rule 56(c), the court may . .

. consider the fact undisputed for purposes of the motion; or grant summary judgment if the

motion and supporting materials—including the facts considered disputed—show that the

movant is entitled to it . . . .”); Lee, 432 F. App’x at 441 (“The nonmovant must . . . do more than

simply show that there is some metaphysical doubt as to the material facts . . . to create a

‘genuine’ dispute.”). 

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In sum, Erie has demonstrated that no genuine disputes as to any material facts remain

for adjudication in this case and that it is entitled to judgment as a matter of law. Accordingly,

Erie’s Motion for Summary Judgment is GRANTED. (ECF No. 24.) Having granted Erie’s

Motion for Summary Judgment, the Court need not consider its alternative Motion for Default

Judgment. (ECF No. 30.) That Motion is, therefore, DENIED AS MOOT. 

IV.

For the reasons set forth above, Erie’s Motion for Summary Judgment (ECF No. 24) is

GRANTED, and its Motion for Default Judgment (ECF No. 30) is DENIED AS MOOT. The

Clerk is DIRECTED to enter judgment in Erie’s favor in the amount of $53,501.67, which

consists of the $3715 the Kastra Defendants owed Erie for the Bond, the $44,446.89 Erie paid to

Waco in connection with the Bond, and the $5,339.78 Erie spent in attorneys’ fees defending

against Waco’s claims and in pursuing it own judgment. The Clerk shall remove this case from

the Court’s pending cases list. 

 IT IS SO ORDERED.

Date: April 10, 2012 /s/ Elizabeth A. Preston Deavers 

 Elizabeth A. Preston Deavers

 United States Magistrate Judge

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